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AN EXAMINATION 

INTO THE VALIDITY OP THE NEW JERSEY 
SENATORIAL ELECTION OF MARCH 15, 1865. 


By the Constitution of the United States, Art. I, Sec. 3, “ the 
Senate of the United States shall be composed of two Senators 
from each State, chosen by the Legislature thereof for six 
years.” 

Article I, section 4 : “ The times, places and manner of hold¬ 
ing elections for Senators and Representatives shall be prescribed 
in each State by the Legislature thereof,” &c. 

By the Constitution of the State of New Jersey, Article IY, 
Section 1, the Legislature of the State is composed of a Senate 
and General Assembly, meeting separately in some instances, 
(Article IV, clause 1, clause 3,) and in others in joint meeting, 
(Article IY, section 5, clause 1.) In the latter clause, called 
“ the Legislature in joint meeting;” in Article Y, clause 2, “ both 
houses in joint meeting,” and in Article 7, section 2, clause 2, 
clause 3, “ the Senate and General Assembly in joint meeting.” 

By the Statute of New Jersey entitled “An act to prescribe 
the manner of appointing Senators of the United States on the 
part of this State,” it is enacted “that Senators of the United 
States on the part of this State shall be appointed by the Senate 
and General Assembly of this State in joint meeting assem¬ 
bled,” and no further provision is contained in any statute of 
the State regulating the choice of Senators, except in case of 
vacancy, when the Governor may appoint. 

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By the second section of the same act the Governor is required 
to commission, under the great seal of the State, every person 
who shall be elected a Senator. 

The Senatorial term of Hon. John C. Ten Eyck, Senator of 
the United States from the State of New Jersey, expired on the 
4th day ot March, in the year 1865. The Legislature of New 
Jersey assembled on the 10th day of January, in,the year 1865, 
and it became its duty to choose a Senator in his stead to repre¬ 
sent the State in the Senate of the United States. 

To conform to the statute last stated in the choosing of the 
Senator, a joint meeting became necessary. Accordingly, soon 
after the meeting of the Legislature, on the 8th day of February, 
1865, the Senate passed the following resolution: 

“ Resolved , That the Secretary be directed to inform the 
House of Assembly that the Senate will be ready to go into joint 
meeting for the appointment of a United States Senator, State 
Treasurer, and such other State and County Officers as may be 
necessary, on the 15th day of February, instant, at three o’clock, 
P. M., in the Assembly Chamber, 

“ In which the concurrence of the House of Assembly is re¬ 
quested.” 

On the same day, the said resolution was sent to the House 
of Assembly, as follows : 

“ The following message from the Senate was received 1 the 
hands of their Secretary : 

“ Senate Chamber, February 8th, 1865. 

“ Mr. Speaker :—I am directed by the Senate to inform the 
House of Assembly that the Senate has passed the following 
concurrent resolution: 

“ Resolved , That the Secretary be directed to inform the House 
of Assembly that the Senate will be ready to go into joint meet¬ 
ing for the appointment of United States Senator, State Trea¬ 
surer, and such other State and County Officers as may be ne¬ 
cessary, on the 15th day of February, inst., at 3 o’clock, P. M. ? 
in the Assembly Room. 

“ In which the concurrence of the House of Assembly is re¬ 
quested. 

“ John H. Meeker, Secretary of the Senate 


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'JKijSi 

3 qtL 

, H +~8 

On the 14th day of February, 1865, the following entry ap¬ 
pears in the House Journal: 

“ The resolution from the Senate relative to joint meeting was 
taken up and concurred in.” 

The following is the Journal of the Joint Meeting: 

IN JOINT MEETING. 

State of New Jersey, Assembly Chamber, 1 
Trenton, February 15, 1865. / 

At half-past three o’clock, P. M., the Senate and General As¬ 
sembly met in Joint Meeting in the Assembly Chamber, for the 
purpose of making sundry appointments : of United States Sen¬ 
ator, State, County and Township Officers. 

Hon. Joseph T. Crowell nominated Hon. Edward W. Scudder 
for Chairman of the Joint Meeting. 

Which was unanimously agreed to 

On motion of Mr. Holsman, John H. Meeker was appointed 
Secretary of the Joint Meeting. 

On motion of the same Senator, George B. Cooper was ap¬ 
pointed Assistant Secretary. 

Under the direction of the Chairman the Secretary called the 
Joint Meeting, as follows: 

Messrs. Abbett, L., Abbott, N. S., Acton, Allen, Anderson, 
Bates, Beesley, Birdsall, Blauvelt, Bodine, Boss, Brinck, Bro¬ 
king, Buckley, Callahan, Chandler, Clever, Corey, Coriell, 
Crowell, Culver, Demarest, Dickeson, Doughty, Dougherty, 
Duryea, Fisher, Goble, Green, Haring, Harrison, Heulings, 
Hoagland, Hoffman, Holmes, Holsman, Horner', Iliff, W. J., 
Iliff, W. M., Irick, Jarrard, Jenkins, Kearney, Kennedy, Kin- 
ter, Lake, Landell, Lathrop, Lighthipe, Little, Ludlam, Martin, 
Moore, Nicholson, Nixon, Peddie, Randolph, Reeves, Robins, 
Robison, Schenck, Scovel, Scudder, Seiffert, Staats, Stille, 
Stockton, Taylor, Treadwell, Trusdell, Van Buskirk, Van Vorst, 
Van Wagoner, Ware, Weart, Willever, Wilson, Wright, Wurts, 
Young—80. 

Mr. Holsman moved that the rules of the last Joint Meeting 
be adopted for the government of this Joint Meeting, except the 
sixteenth rule, for which he offered the following resolution: 

j Resolved, That no candidate shall be declared elected unless 
upon receiving a majority of the votes of all the members elected 
to both houses of the Legislature. 

Which was agreed to. 


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[The said sixteenth rule of the last Joint Meeting was as fol¬ 
lows :— u 16. That all candidates fo: office, upon receiving a 
majority of the votes cast by this Joint Meeting, shall be de¬ 
clared to be duly elected.”] 

On motion of Mr. Holsman, the resolution under which the 
Joint Meeting was called, was read, as follows: 

Resolved, That the Secretary be directed to inform the House 
of Assembly that the Senate will be ready to go into Joint Meet¬ 
ing for the appointment of United States Senator, State Trea¬ 
surer, and such other State and County Officers as may be ne¬ 
cessary, on the 15th day of February, instant, at 3 o’clock, P. 
M., in the Assembly, in which the concurrence of the House of 
Assembly is requested. 

Mr. Ludlam moved to proceed to the election of a United 
States Senator. 

Mr. Holsman moved to amend by postponing the same until 
the 1st day of March next. 

Mr. Scovel moved further to amend by postponing the same 
until the 7th day of March next. 

Upon which the yeas and nays w'ere taken, as follows: 

In the affirmative, were Messrs. Abbott, N. S., Acton, Bates, 
Birdsall, Blauvelt, Bodine, Buckley, Callahan, Clever, Crowell, 
Dickeson, Fisher, Green, Jarrard, Lake, Robison, Scovel,- Staats, 
Ware, Wright—20. 

In the negative, were Messrs. Abbett, L., Allen, Anderson, 
Boss, Brinck, Broking, Chandler, Corey, Coriell, Culver, Dem- 
arest, Doughty, Dougherty, Duryea, Goble, Haring, Harrison, 
Heulings, Hoagland, Hoffman, Holmes, Holsman, Horner, Iliff, 
W. J., Iliff, W. M., Irick, Jenkins, Kearney, Kennedy, Kinter, 
Landell, Lathrop, Lighthipe, Little, Ludlam, Martin, Moore, 
Nicholson, Nixon, Peddie, Randolph, Reeves, Robins, Schenck, 
Scudder, Seiffert, Stille, Stockton, Taylor, Treadwell, Trusdell, 
Van Buskirk, Van Yorst, Van Wagoner, Weart, Willever, Wil¬ 
son, Wurts, Young—59. 

So said amendment to the amendment was not agreed to. 

The yeas and nays then being taken upon the amendment of¬ 
fered by Mr. Holsman, resulted as follows: 

In the affirmative, were Messrs. Abbett, L., Acton, Allen, 
Anderson, Boss, Broking, Chandler, Corey, Coriell, Culver, 
Demarest, Dickeson, Doughty, Dougherty, Duryea, Goble, Ha¬ 
ring, Hoagland, Hoffman, Holmes, Holsman, Iliff, W. J., Iliff, 
W. M., Jenkins, Kearney, Kennedy, Kinter, Little, Martin, 
Randolph, Robins, Schenck, Scudder, Seiffert, Stille, Taylor, 


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Treadwell, Trusdell, Van Buskirk, Van Yorst, Ware, Weart, 
Willever, Wurts, Young—45. 

In the negative, were Messrs. Abbott, N. S., Bates, Birdsall, 
Blauvelt, Bodine, Brinck, Buckley, Callahan, Clever, Crowell, 
Fisher, Green, Heulings, Harrison, Horner, Irick, Jarrard, 
Lake, Landell, Lathrop, Lighthipe, Ludlam, Moore, Nicholson, 
Nixon, Peddie, Reeves, Robison, Scovel, Staats, Stockton, Van 
Wagoner, Wilson, Wright—34. 

So said amendment was agreed to. 

On motion of Mr. Holsman, it was 

Resolved , That when this Joint Meeting adjourn it adjourn to 
meet on Wednesday, March 1st, at 3 P. M. 

[After appointing a large number of State officers, “ On mo¬ 
tion of Mr. Holsman, the Joint Meeting adjourned.”] 

IN JOINT MEETING. 

Assembly Chamber,- 
Wednesday, March 1, 1865. 

At 3 o’clock, P. M., the adjourned Joint Meeting came to 
order in the Assembly Chamber. 

Under the direction of the Chairman the Secretary called the 
Joint Meeting, when the following gentlemen answered to their 
names: 

Messrs. Abbett, L., Abbott, N. S., Acton, Allen, Anderson, 
Bates, Beesley, Birdsall, BLuvelt, Bodine, Boss, Brinck, Bro¬ 
king, Buckley, Callahan, Chandler, Clever, Corey, Coriell, 
Crowell, Culver, Demarest, Dickeson, Doughty, Dougherty, 
Duryea, Edsall, Fisher, Goble, Green, Haring, Harrison, Heu¬ 
lings, Hoagland, Hoffman, Holmes, Holsman, Horner, lliff, W. 
J., Iliff, W. M., Irick, Jarrard, Jenkins, Kearney, Kennedy, 
Kinter, LaKe, L »ndell, Lathrop, Lighthipe, Little, Ludlam, 
Martin, Moore, Nicholson, Nixon, Peddie, Reeves, Robins, Ro¬ 
bison, Schenck, Scovel, Scudder, Seiffert, Staats, Stille, Stock- 
ton, Taylor, Treadwell, Trusdell, Van Buskirk, Van Yorst, Yan 
Wagoner, Ware, Weart, Willever, Wilson, Wright, Wurts, 
Young—80. 

Mr Holsman moved that the consideration of the election of 
United States Senator be postponed until the 15th day of March 
inst. 

The yeas and nays being demanded and ordered upon the 
question of agreeing thereto, were as follows: 


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In the affirmative, were Messrs. Abbett, L., Anderson, Allen, 
Boss, Broking, Chandler, Corey, Coriell, Culver, Demarest, 
Doughty, Dougherty, Duryea, Edsall, Goble, Haring, Hoagland, 
Hoffman, Holmes, Holsman, Iliff, W. J., Iliff, W. M., Jenkins, 
Kearney, Kennedy, Kinter, Little, Martin, Bobins, Schenck, 
Scovel, Scudder, Seiffert, Stille, Taylor, Treadwell, Trusdell, 
Van Buskirk, Van Vorst, Weart, Willever, Wurts, Young—48. 

In the negative, were Messrs. Abbott, N. S., Acton, Bates, 
Beesley, Birdsall, Blauvelt, Bodine, Brinck, Buckley, Callahan, 
Clever, Crowell, Dickeson, Fisher, Green, Harrison, Heulings, 
Horner, Irick, Jarrard, Lake, Landell, Lathrop, Lighthipe, 
Ludlam, Moore, Nicholson, Nixon, Peddie, Beeves, Bobison, 
Staats, Stockton, Van Wagoner, Ware, Wilson, Wright—87. 

So said motion was agreed to. 

Mr. Holsman moved that when this Joint Meeting adjourns it 
be to meet on the 15th day of March, inst. 

[After appointing several State officers, “ On motion of Mr. 
Holsman the Joint Meeting then adjourned.”] 

IN JOINT MEETING. 

Assembly Chamber, 
Wednesday, March 15, 1865. 

At 8 o’clock, P. M., the adjourned Joint Meeting came to 
order in the Assembly Chamber. 

Under the direction of the Chairman the Secretary called the 
Joint Meeting, when the following gentlemen answered to their 
names : 

Messrs. Abbett, L., Abbott, N. S., Acton, Allen, Anderson, 
Bates, Beesley, Birdsall, Blauvelt, Bodine, Boss, Brinck, Bro¬ 
king, Buckley, Callahan, Chandler, Cleaver, Cory, Coriell, 
Crowell, Culver, Demarest, Dickeson, Doughty, Dougherty, 
Duryea, Edsall, Fisher, Goble, Green, Haring, Harrison, Heu¬ 
lings, Hoagland, Hoffman, Holmes, Holsman, Horner, Iliff, W. 
J., Iliff, W. M. Irick, Jarrard, Jenkins, Kearney, Kennedy, 
Kinter, Lake, Landell, Lathrop, Lighthipe, Little, Ludlam, 
Martin, Moore," Nicholson, Nixon, Peddie, Eandolph, Beeves, 
Bobins, Bobison, Schenck, Scovel, Scudder, Seiffert, Staats, 
Stille, Stockton, Taylor, Treadwell, Trusdell, Van Buskirk, 
Van Vorst, Van Wagoner, Ware, Veart, Willever, Wilson, 
Wright, Wurtr, Young—81. 

[It will be noticed, that at the call of the Joint Meeting at its 


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first session, only eighty members answered to their names* 
There w T as a vacancy in the Legislature at that time, occasioned 
by the death of Mr. Fowler, a member from Sussex. Prior to 
the election of Mr. Stockton, however, Mr. Edsall was elected 
to fill that vacancy ; thus completing the full numerical strength 
of the Legislature present and voting on this occasion.] 

Mr. Holsman offered the following resolution, and moved its 
adoption: 

^ Resolved , That the resolution that no candidate shall be de¬ 

clared elected unless upon receiving a majority of the votes of 
all the members elected to both Houses of the Legislature be 
rescinded, and that any candidate receiving a plurality of votes 
of the members present shall be declared duly elected. 

Mr. Ludlam moved that the question be divided. 

The Chairman ruled said motion out of order, the Secretary 
having commenced to call the roll upon the adoption of said res¬ 
olution. 

Whereupon, Mr. Crowell appealed from the decision of the 
Chair. 

Upon the question, shall the decision of the Chair be sustained? 
The yeas and nays being taken resulted as follows: 

' ^ In the affirmative, were 

Messrs. Abbett, L., Abbott, N. S., Acton, Allen, Anderson, 
Beesley, Blauvelt, Boss, Broking, Buckley, Callahan, Chandler, 
Corey, Coriell, Culver, Demarest, Doughty, Dougherty, Duryea, 
Edsall, Fisher, Goble, Green, Haring, Harrison, Hoagland, Hoff¬ 
man, Holmes, Holsman, Horner, Iliff, W. J., Xliff, W. M., Irick, 
Jarrard, Jenkins, Kinter, Lake, Lighthipe, Little, Ludlam, 
Martin, Moore, Nicholson, Nixon, Randolph, Reeves, Robins, 
Schenck, Seiffert, Stille, Taylor, Treadwell, Trusdell, Van Bus- 
kirk, Van Vorst, Van Wagoner, Ware, Weart, Willever, Wilson, 
Wright, Wurts, Young—65. 

In the negative, were 

Messrs. Bates, Birdsall, Bodine, Brinck, Cleaver, Crowell, 
Dickesdn, Ileulings, Landell, Lathrop, Peddie, Robison, Scovel, 
Staats, Stockton—15. 

So the decision of the Chair was sustained. 

The question then being upon the adoption of the Resolution 
offered bv Mr. Holsman, and the yeas and nays being taken, re¬ 
sulted as follows: 

In the affirmative w T ere 

Messrs. Abbett, L., Allen, Anderson, Boss, Broking, Chan¬ 
dler, Corey, Coriell, Culver, Demar.est, Dougherty, Duryea, 


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Edsall, Goble, Haring, Hoagland, Hoffman, Holmes, Holsman r 
Iliff, W. J., Iliff, W. M., Kearney, Kinter, Little, Martin, Ran¬ 
dolph, Robins, Schenek, Scudder, Seiffert, Stille, Taylor, Tread¬ 
well, Trusdell, Van Buskirk, Yan Yorst, Weart, Willever, 

Wright, Wurts, Young—41. 

In the negative, were 

Messrs. Abbott, N. S., Acton, Bates, Beesley, Birdsall, Blau- 
yelt, Bodine, Brinck, Buckley. Callahan, Cleaver, Crowell, 

Dickeson, Doughty, Fisher, Green, Harrison, Heulings, Horner, 

Irick, Jarrard, Jenkins, Kennedy, Lake, Landell, Lathrop, 

Lighthipe, Ludlam, Moore, Nicholson, Nixon, Peddie, Reeves, * 

Robison, Scovel, Staats, Stockton, Yan Wagoner, Ware, Wilson 
—40 

So said Resolution was adopted. 

Mr. Jenkins moved that the Joint Meeting do now adjourn 
sine die . 

Upon which the yeas and nays were taken with the following 
result: 

In the affirmative, were 

Messrs. Abbott, N. S., Acton, Bates, Beesley, Birdsall, Blau- 
velt, Bodine, Brinck, Buckley, Callahan, Cleaver, Crowell, Dick¬ 
eson, Fisher, Green, Harrison, Heulings, Hor .er, Irick, Jarrard, 

Jenkins, Kennedy, Lake, Landell, Lathrop, Lighthipe, Ludlam, * 

Moore, Nicholson, Nixon, Peddie, Reeves, Robison, Scovel, 

Staats, Stockton, Yan Wagoner, Ware, Wilson, Wright—40. 

In the negative, were 

Messrs. Abbett, L., Allen, Anderson, Boss, Broking, Chan¬ 
dler, Corey, Coriell, Culver, Demarest, Doughty, Dougherty, 

Duryea, Edsall, Goble, Haring, Hoagland, Hoffman, Holmes, 

Holsman, Iliff, W. J., Iliff, W. M , Kearney, Kinter, Little, 

Martin, Randolph, Robins, Schenck, Scudder, Seiffert, Stille, 

Taylor, Treadwell, Trusdell, Yan Buskirk, Yan Yorst, Weart, 

Willever, Wurts, Young—41. 

So said motion was not agreed to. 

Mr. Holsman moved that the Joint Meeting do now proceed 
to the election of United States Senator, ‘ -t 

Which was agreed to. 

Whereupon Mr. Holsman nominated the Hon. John P. Stock- 
ton, of the county of Mercer. 

Mr. Kennedy nominated the Hon. James W. Wall, of the 
county of Burlington. 

Mr. Doughty nominated the Hon. Peter D. Yroom, of the 
county of Mercer. 


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Mr. Jenkins nominated the Hon. Henry S. Little, of the 
county of Monmouth. 

Mr. Scovel nominated the Hon. F. T. Frelinghuysen, of the 
county of Essex. 

Mr. Ludlam nominated the Hon. John C. Ten Eyck, of the 
county of Burlington. 

Mr. Little declined being a candidate, and desired his name 
withdrawn. 

Under the direction of the Chairman, the Secretary called the 
Joint Meeting, resulting as follows : 

For John P. Stockton, were 

Messrs. Abbett, L., Allen, Anderson, Boss, Broking, Chan¬ 
dler, Corey, Coriell, Culver, Demarest, Dougherty, Duryea, 
Edsall, Goble, Haring, Hoagland, Hoffman, Holmes, Holstnan, 
Iliff, W. J., Uiff, W. M., Kearney, Kinter, Little, Martin, 
Randolph, Robins, Schenck, Scudder, Seiffert, Stille, Taylor, 
Treadwell, Trusdell, Van Buskirk, Van Yorst, Weart, Willever, 
Wurts, Young—40. 

For John C. Ten Eyck, were 

Messrs. Abbott, N. rf., Acton, Bates, Beesley, Birdsall, Blau- 
velt, Bodine, Brinck, Buckley, Callahan, Cleaver, Crowell, 
Dickeson, Fisher, Green, Harrison, Heulings, Horner, Irick, 
Jarrard, Lake, Mandell, Lathrop, Lighthipe, Ludlam, Moore, 
Nicholson, Nixon, Peddie, Reeves, Robison, Staats, Stockton, 
Van Wagoner, Ware, Wilson, Wright—37. 

For James W. Wall, was 

Mr. Kennedy—1. 

For Peter D. Yroom, was 

Mr. Doughty—1. 

For F. T. Frelinghuysen, was 

Mr Scovel—1. 

For Henry S. Little, was 

Mr. Jenkins—1. 

The Hon. John P. Stockton having received a plurality of 
all the votes cast, was declared duly elected United States 
Senator for the term of six years from the fourth day of March 
inst. 

[After appointing several State officers,] 

Mr. Holsman moved that the Joint Meeting do now rise. 

Which was agreed to. 

Attest: JOHN H. MEEKER, 

Secretary of the Joint Meeting . 


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Two general propositions arise under this statement of the 
provisions of the United States and State Constitutions; the 
statute of the State; and the proceedings of the “ Legislature 
in joint meeting assembled;” viz : 

I. Was the Senator so elected “ chosen by the Legisla¬ 
ture” of the State? 

* 

II. Was the “time, place, and manner” of holding such 
election prescribed by the Legislature in the sense of 

THESE WORDS, AS USED IN THE CONSTITUTION OF THE UNITED 

States ? 

Under the first proposition it will be necessary to inquire:— 
First. What is the Legislature of New Jersey? and Second. 
Did the Legislature make a choice ? 

First. What is the Legislature of New Jersey ? 

The Constitution of New Jersey, Art. IV, Sec. 1, Clause 1, 
provides: “ the legislative power shall be vested in a Senate and 
General Assembly.” 

Art. IV., Sec. 1, clause 3. “The two Houses shall meet se¬ 
parately on the second Tuesday in January next after said day 
of election.” 

But the Constitution also provides for the meeting of the two 
Houses not separately but in joint meeting. 

Art. VII., sec. 2, clause 2. “Judges, &c. shall be appointed 
by the Senate and General Assembly in joint meeting.” Clause 
3. “ The State Treasurer, &c. shall be appointed by the 

Senate and General Assembly in joint meeting. 

Art. V., clause 2. In a certain case the Governor shall be 
chosen “by the votes of a majority of the members of both 
Houses in joint meeting.” 

But the question recurs : When met in joint meeting, are the 
two Houses still the Legislature ? 

Art. IV., sec. 5, clause 1, provides that “No member of the 
v Senate or General Assembly shall during the term for which 
he was elected, be nominated or appointed by the Governor or 
by the Legislature in joint meeting ,” &c. 


/ 


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Art. V., clause 12. “ Where a vacancy happens during the 

recess of the Legislature in any office which is to be filled by 
the Governor and Senate, or by the Legislature in joint meet¬ 
ing, the Governor shall fill,” &c. 

The Journal of the Constitutional Convention in New Jersey 
shows that the clause cited above, from Article IY, when origi¬ 
nally reported by the committee, did not contain the words 
“ Legislature in joint meeting ,” but simply said “ during the 
time for w T hich he was elected or appointed.” It was amended in 
committee of the whole by inserting after “ appointed ” the 
words “ by the Grovernor and Senate, or by the Legislature .” 

On motion of Mr. Ewing, (page 150, Con. Journal,) the amend¬ 
ment was amended by striking out Legislature , and inserting 
joint meeting. 

On motion of Chief Justice Hornblower, (page 151, Con. 
Journal,) it was again amended by inserting before “ joint meet¬ 
ing ” the words “ Legislature in.” 

The very object of this amendment was to conclude this ques¬ 
tion which had been raised in reference to the Constitution of 
some other States. 

These passages from the Constitution of New Jersey, (which 
only, can dejine what is the Legislature of the State,) show con¬ 
clusively that an election by the joint meeting is an election by 
the Legislature. But the Senate of the United States, from 
1789 to the present time—the last seventy-six years—has re¬ 
cognized the joint meeting of the New Jersey Legislature as the 
Legislature thereof, whatever may be the Legislature of other 
States. Every Senator from New Jersey has been elected by 
the joint meeting under the rules prescribed by the same or a 
similar statute. Unless the joint meeting is the Legislature, we 
never have had a United States Senator from New Jersey. 

Second. Did the Legislature make a choice ? 

“ The Senate of the United States shall be composed of two 
Senators from each State, chosen by the Legislature thereof, for 
six years.” This establishes the body of electors. It has no 
reference to “manner” of selection. “ Chosen by the Legisla¬ 
ture ” is elected by the Legislature. It is the Legislature, not 


12 


the people, who are to choose. 44 Eligere” to take out or elect, 
to call out one thing before another ; to select. 44 To choose ” 
is “ to elect .” 

That the words are used in the Constitution as synonyms is 
manifest from other clauses of the same instrument: 44 Who 
shall not when 4 elected ,’ be an inhabitant of that State for which 
he shall be 4 chosen .’ ” 

The times, places and manner of holding 44 elections ” for Sen¬ 
ators and Representatives shall be prescribed 44 in each State by 
the Legislature thereof, but the Congress may at any time, by 
law, make or alter such regulations, except as to the places of 
4 choosing 9 Senators.” 

44 The Senate shall 4 choose ’ their other officers, and also a 
President pro tempore.” 

44 Each House shall be the judge of the election , returns, and 
qualifications of its own members, &c.” 

44 No Senator or Representative shall during the time for 
which he was 4 elected .’ ” 

44 The House of Representatives shall be composed of mem¬ 
ber? 4 chosen ’ every second year.” 

“No person shall be a Representative who shall not, when 
4 elected ,’ be an inhabitant of that State in which he shall be 
4 chosen .’ ” 

44 The House of Representatives shall 4 choose 9 their Speaker.” 

Yet under this last clause it is to be noted that Howell Cobb 
and N. P. Banks were each 44 chosen ” by a plurality vote Speak¬ 
ers of the House. 

The first clause of the fourth section of the first article is as 
follows:— 44 The times, places and manner of holding elections 
for Senators and Representatives shall be prescribed in each 
State by the Legislature thereof; but the Congress may at any 
time by law, make or alter such regulations, except as to the 
place of choosing Senators.” 

It is well known that this clause of the Constitution was as¬ 
sailed in the State Conventions, on the ground that Congress 
might contrive the manner of holding elections so as to exclude 
all but their own favorites from office. 


13 


The Conventions of the States of Virginia, Massachusetts, 
New Hampshire, New York, Rhode Island and South Carolina 
accompanied their ratification of the Constitution with a solemn 
protest against the power of Congress over the election. They 
prepared amendments to the Constitution calculated to carry out 
their views, and recorded on their journals perpetual instruc¬ 
tions to their Representatives in Congress to urge earnestly and 
zealously their adoption, and to refrain from the exercise of any 
power inconsistent with the principles of the proposed amend¬ 
ments. 

Judge Story, in his Commentaries on the Constitution, section 
826, after having stated the objections to the latter part of the 
clause which were made at the time of the adoption of the Con¬ 
stitution, and the reasoning by which they were met, thus con¬ 
cludes :—“ A period of forty years has since passed by, without 
any attempt by Congress to make any regulations or interfere 
in the slightest degree in the elections of members of Congress. 
If, therefore, experience can demonstrate anything, it is the en¬ 
tire safety of the power in Congress, which it is scarcely possible 
(reasoning from the past) should be exerted except upon very 
urgent occasions. The States now regulate the time, the place, 
and the manner of elections in a practical sense exclusively. 
The manner is very various; and perhaps the power ha3 been 
exerted in some instances, under the influence of local or party 
feelings, to an extent which is indefensible in principle and 
policy. There is no uniformity in the .choice or in the mode of 
election. In some States the Representatives are chosen by a 
general ticket for the whole State; in others they are chosen 
singly in districts, &c., &c. In some States the candidate must 
have a majority of all the votes to entitle him to be deemed 
elected ; in others (as it is in England,) it is sufficient if he has 
a plurality of votes. In some of the States the choice is by the 
voters viva voce (as it is in England;) in others it is by ballot. 
The times of the elections are quite as various,—sometimes be¬ 
fore and sometimes after the regular period at which the office 
becomes vacant. That this want of uniformity as to the time 
and mode of election has been productive of some inconvenience 


14 


to the public service cannot be doubted, for it has sometimes oc¬ 
curred at an extra session a whole State has been deprived of 
its vote, and at the regular sessions some districts have failed of 
being represented upon questions vital to their interests. Still, 
so strong has been the sense of Congress of the importance of 
leaving these matters to State regulation, that no effort has been 
hitherto made to cure these evils, and public opinion has almost 
irresistibly settled down in favor of the existing system.” 

Contrary to the prediction of the learned commentator, Con¬ 
gress passed an act, in 1842, entitled “ An act for the appor¬ 
tionment of Representatives among the several States according 
to the sixth census,” the second section of which provides that 
in every case where a State is entitled to more than one Repre¬ 
sentative, the number to which each State shall be entitled un¬ 
der this apportionment shall be elected by districts composed of 
contiguous territory equal in number to the number of represen¬ 
tatives to which the State may be entitled. The authority under 
which Congress made this provision was the fourth section of 
article first, the latter part of which says Congress may at any 
time make or alter the State regulations in reference to the 
manner of choosing Senators and Representatives. 

When the law of Congress passed, New Hampshire, New Jer¬ 
sey, Alabama, Georgia, Mississippi and Missouri had election 
laws requiring their Representatives to be elected by general 
ticket New Jersey and Alabama conformed to the law of Con¬ 
gress. It was insisted that the elections of New Hampshire, 
Georgia, Mississippi and Missouri under the State law were void. 
The debate on the subject occupied a large part of the session. 
The majority of the committee to whom it was referred reported 
that the law was unconstitutional, and the members elected on 
general ticket entitled to their seats. The minority reported 
that the law was valid, and the seats should be declared vacant. 
Neither report was formally agreed to, but it was voted by a 
decided majority that the members retain their seats. The re¬ 
ports were both prepared by gentlemen of great ability,—the 
majority report by Stephen A. Douglas, and that of Die minority 
by Garret Davis. 


15 


But both the majority report of Mr. Douglas, and the 
minority report of Mr. Garret Davis agree so far as the question 
concerns the right of the Legislature to prescribe any manner, 
where Congress does not exercise its privilege. The State 
Legislatures shall prescribe the times, places and manner. 

“An imperative duty,” says Mr. Douglas, “rests upon the 
Legislatures, whilst a mere privilege is granted to Congress. 
In the performonce of this duty, the Legislatures are clothed 
with a wide discretion, upon which the Constitution imposes no 
restraints. They may provide for elections by general ticket, 
or in districts ; for voting by ballot, or viva voce; for opening 
the polls at one place and on one day, or at different places and 
on different days. These and all things pertaining to the times, 
places and manner of holding elections are confided to the' 
wisdom and discretion of the several Legislatures, to be per¬ 
formed in such manner as they shall deem most favorable to 
popular rights and just representation.” 

He alludes to the fact that when General Pinckney proposed 

in the Convention which formed the Constitution, that the 
^ 7 

representatives “should be elected in such manner as the 

Legislatures of each State shall direct,” he urged among other 

reasons in support of his plan, “ that this liberty would give 

more satisfaction, as the Legislature could then accommodate the 

mode to the convenience and opinions of the people .” • 

Mr. Davis says: “ Some of the States have passed laws 
regulating their election of Senators ; others have not; and yet 
the constitutionality of the regulations of the latter States 
for holding their elections of representatives has not been and 
cannot be questioned. Such States as have no regulations by 
law for the Senatorial elections may make them also ; so Con¬ 
gress could pass a law requiring the election of Senators gen¬ 
erally ; for that would be an alteration of the election regula¬ 
tions of some of the States by adding to them. Congress could 
thus establish uniformity in the mode of electing Senators, by 
enacting a law requiring both branches of the State Legisla¬ 
tures to choose by their aggregate vote, and might confine its 
action to that or any other particular regulation for the election 


16 


of Senators. That principle has generally prevailed in Sena¬ 
torial elections, &c. The State Legislatures might alter their 
existing regulations relating to time, or place, or manner, con¬ 
fining their action to either one.” 

The report illustrates the meaning of the expression “chosen” 
by the Legislature, as used in the Constitution in reference to 
Senators, and “ chosen” every second year by th3 people of the 
several States, in reference to Representatives, insisting that 
this is only an indication of the body of electors , not the manner 
of elections, or the absurdity follows, that the people of every 
State not only have a right, but are bound to “choose” the 
House of Representatives. 

It is manifest that the only object of this clause was to 
establish the body of electors, both as to Senators and Repre¬ 
sentatives. 

The House is composed of members “ chosen ’ every second 
year u by the people” of the several States, and the time, place 
and manner of the choice is to be prescribed by the State 
Legislatures. 

The Senate is composed of two Senators “ chosen by the 
Legislature ” for six years, at the time, in the place, and by the 
manner prescribed by the Legislature. 

Chosen “ by the people ” is always by a plurality vote in New 
Jersey, the Legislature has so prescribed. 

Chosen “ by the Legislature ” is as the Senate and Assembly, 
in whom our Constitution has vested all legislative power, shall 
prescribe, and in failure of a special rule prescribed, the rule of 
the body is prescribed by parliamentary law. 

The times, places, and manner for holding elections for 
Senators and Representatives shall be prescribed in each State 
by the Legislature thereof. 

In some of the States it is prescribed by statute that the 
election shall be by concurrent action, in some by joint vote, 
in others an effort is first made to elect by separate action, and 
on failure thereof resort is had to joint meeting. Some States 
require a majority of all the members elected to choose a 
Senator, some only a majority of those present and voting, 


17 


some leave the number of votes necessary to the joint meeting, 
to determine either by rule for that purpose, or parliamentary 
law, while some States it would seem have never passed any 
law on the subject, and must therefore prescribe the manner at 
the time by the action of the body electing. 

New York. —Such election shall be made by the Legislature 
in the following manner: The Senate and Assembly shall each 
openly nominate one person for the office of Senator in Congress; 

> after which they shall immediately meet, and if they shall agree 

in their nominations, the person so nominated shall be appointed 
to the office for which he shall be nominated. If they shall dis¬ 
agree, the election shall be made by the joint ballot of the Sena¬ 
tors and Members of Assembly. 

Pennsylvania. —By joint ballot; and a majority of the 
members present required to elect. 

Vermont. —First by separate vote, and if the same person 
does not receive the majority of all the votes in each house, then 
by joint ballot; and a majority of all the votes of the joint as¬ 
sembly required. 

North Carolina provides that the election shall be by joint 
vote of both Houses of the General Assembly, the vote being 
viva voce ; and it is necessary to have a majority of the votes of 
both Houses to elect. 

Wisconsin elects by joint vote, declaring in section 2 of the 
act; a majority of all the votes given, shall be necessary to 
elect a Senator. 

In Michigan.— The Senate and House shall each openly nom¬ 
inate one person for the office of Senator, after which, they shall 
immediately meet in joint convention in the hall of the House. 
If they shall agree, the person so nominated shall be deemed 
A elected. If they shall disagree, the election shall be made by ( a 

joint vote of the Senators and members, and a majority of the 
votes given in such convention shall be necessary to an election. 

Louisiana elects by joint vote; “ and the person or persons 
having the greater number of votes, shall be declared duly 
elected Senator or Senators, provided such number be a ma¬ 
jority of all the members present, 
o 


18 


Kentucky.— Senators in the Congress of the United States 
shall be elected by viva voce vote of the members of the two- 
branches of the General Assembly in joint ballot. 

Alabama.—A majority of the whole number necessary to a 
choice. 

Indiana.— Hereafter all elections of United States Senator 
and other officers to be elected by the General Assembly of this 
State, shall be viva voce ; except certain officers specified, who 
are to be elected by joint ballot. 

Maryland.— By joint ballot; and the person or persons qua¬ 
lified, and having a majority of the votes of all attending mem¬ 
bers in both branches shall be declared duly elected. 

Arkansas. —Joint vote; majority of all the votes given re¬ 
quired. 

California.— Joint vote; a majority of all the votes given, 
necessary to elect a Senator; and the convention can do no act 
but adjourn in the absence of a majority of all the members elect ? 
of either Senate or Assembly. 

In Mississippi, the act is as follows: An act prescribing the 
time, manner and place of holding elections for Senators to Con¬ 
gress. 

At the regular session of the General Assembly of this State 
next preceding the expiration of the term of a United States 
Senator, or at any other session in which a vaeancy or execu¬ 
tive appointment shall be reported by the Governor, shall be 
the time of electing United States Senators. The manner shall 
be by vote of each member of the Senate, and each member of 
the House of Representatives in the State Legislature, and the 
place of holding such election, shall be in the hall of the House 
of Representatives of this State, and the particular day and hour 
of such election shall be determined in each case by a joint reso¬ 
lution of both Houses. 

In Rhode Island.— It is provided that Senators shall be 
elected by General Assembly in grand committee, and not in 
seperate houses. The name of each member shall be called 
aloud by the clerk ; he hands in a ballot and responds the name 



19 


aloud; nothing said about the number of votes necessary to a 
choice. 

Delaware. —Elects in joint meeting, requires a majority of 
all the votes given as necessary to a choice; but if upon any 
balloting, two persons only shall be voted for and receive all the 
votes, and each of them an equal number of votes ; the Speaker 
of the Senate shall give an additional casting vote , unless he 
shall be one of said persons, in which case the Speaker of the 
House of Representatives shall give an additional casting vote, 
unless he shall be the other of said persons; and further, if upon 
twice balloting, more than two persons shall be voted for, and 
one of said persons shall on each balloting receive one-half the 
number of all the votes given, then oil the second ballot, the 
Speaker of the Senate may give an additional casting vote to 
the person having one-half the number of all said votes, unless 
he shall be such person, &c. &c. &c. 

It will be observed that New York, Kentucky, Mississippi, 
Indiana and Rhode Island, as well as New Jersey, require no 
particular numbers of votes, leaving the Legislature to manifest 
their choice in the manner they determine by their own rules. 

Louisiana declares first the “ plurality ” rule, “ the person 
having the greatest number of votes shall be declared duly 
elected,” but subsequently provides that such number must be a 
majority of all the members present. 

The law in Delaware is really a ‘‘plurality” law; for, where 
two persons have an equal number of votes, or one person 
shall have half of all the votes given , the Speaker gives an 
additional casting vote. Now if it be true, as is alleged, that 
“chosen by the Legislature ” means that at least a majority of 
the members should select the candidate, by directly voting for 
him, the permission to the Speaker to vote twice does not accom¬ 
plish that necessary object. But if it is the “ choice of the Le¬ 
gislature,” manifested in any way the majority may see fit that 
is required, the object is attained. And if a majority may not 
express their choice by a plurality vote, this act of Delaware is 
unconstitutional. 

Again, if it is a majority of all the members which is required, 


20 


the laws of Pennsylvania, Michigan, Missouri, Arkansas, Mary¬ 
land and Wisconsin are unconstitutional, for the majority of a 
quorum can elect under them. If, for example, the number of 
members of any of the Legislatures of these States is eighty-one, 
a majority of the whole number is a quorum, viz : forty-one ; a 
majority of the quorum is twenty-one members. Therefore, 
twenty-one members out of eighty-one members, under the law 
of all these States, are capable of choosing a Senator. 

The rule requiring only a majority of the members voting has 
frequently been the rule of the joint meeting of New Jersey, and 
under it they elected a United States Senator in the year 1851, 
by less than a majority , and his right to his seat was never ques¬ 
tioned. In this election the joint meeting first adopted a rule re¬ 
quiring a majority of the whole number ; they subsequently re¬ 
scinded it for a majority of those voting, and elected by thirty- 
nine votes. 

In the case under consideration at present, they adopted the 
rule requiring a majority of the whole number, and rescinded for 
the plurality rule, and elected by forty votes. 

During the argument in Harlan’s case, 84th Cong., 3d sess., 
Mr. Hale said :—“ It is said it is impossible to make anything 
else the Legislature than the Legislature. That is true; but 
does any gentleman here contend that it was not competent for 
the people of Iowa to say that less than a majority should con¬ 
stitute a quorum if they saw fit so to do. I apprehend not. In 
the Legislature of the State of Massachusetts, when the House 
of Representatives consisted of some four hundred or five hun¬ 
dred members, sixty of them constituted a quorum, and when the 
Senate consisted of forty members, sixteen formed a quorum. 
Sixteen Senators and sixty Representatives might pass a bill or 
do any other legislative act, but nobody ever supposed that was 
an infringement of the constitutional provision that the Legisla¬ 
ture must do certain things.” 

In the above case, cited by Mr. Hale, thirty-one members in 
the House might express the will of the five hundred members ; 
and in the Senate nine members might express the will of the 
forty members; and thus the voice of forty members was the 



21 


voice of a Legislature which was composed of upwards of five 
hundred members. 

The act in New Jersey simply says, Senators of the United 
States on the part of this State shall be appointed “ by the 
Senate and General Assembly in joint meeting assembled.” 
There is no constitutional restriction, no restriction on the 
“ manner.” The joint meetings have from the earliest record 
always made their own rules—at one time requiring a majority 
of all elected, at another time a majority of those present, 
electing to some offices without a ballot, sometimes by acclama¬ 
tion, sometimes by silence. On this occasion they first required 
a majority of all elected; they then by a majority vote re¬ 
scinded that resolution and adopted one declaring that the 
plurality rule should prevail, and the person who had the most 
votes should be declared elected. Now the question is , whether 
the Senate of the United States shall make retrospectively, rules to 
govern the joint meeting of New Jersey , or whether it can by a 
majority vote prescribe the manner of indicating its choice. 

**-* The same clause that prescribes that the time, place and man¬ 

ner of holding elections for Senators shall be prescribed in each 
State by the Legislature, provides also in the same words for the 
election of Representatives. Yet Representatives in New Jer¬ 
sey are always elected by a plurality vote, and the statute 
declares that the Board of State Canvassers shBl proceed to 
determine the person or persons who shall by the greatest 
number of votes have been duly elected; yet, under this very 
clause of the Constitution, every member of Congress from New 
Jersey has always been elected by a plurality. Now suppose 
the statute relating to the election of Senator had prescribed the 
- v plurality rule to the joint meeting , would it not have been valid? 

Certainly, if the general election law is valid. Yet, if it is, as 
charged, in violation of the Constitution for the joint meeting 
to make such a rule, it must be in violation of the Constitution 
for the Legislature to prescribe it, and hence the election of 
Representatives from New Jersey has always been unconstitu¬ 
tional. The plurality rule has been the rule in such elections 
in most of the States. The States of Maine and Massachusetts 


22 


were exceptions, but the inconvenience of the majority rule in 
electing Representatives was so great, that it induced an 
amendment of the State Constitutions of these States. But 
suppose that the majority is necessary to appoint a Senator. 
The “ manner ’ in which the majority manifests that choice, in 
failure of any restriction of the Constitution of the State or of 
the United States, is certainly confided to their discretion, 
whether they vote by ballot or viva voce ; whether by rising or 
sitting; whether by permitting a plurality to indicate their 
choice, or requiring a majority of all the members elected, it is 
for them to decide. They did decide, that they “chose” the 
candidate who on the coming ballot should receive the most 
votes. It was not an unreasonable manner, for it was the rule 
adopted by the general election law of the State. It was the 
manner in which members of Congress were elected under the 
same clause of the Constitution of the United States which 
imposed upon them the duty they were engaged in performing. 

The Constitution of the United States commanded the 
Legislature to prescribe the manner of electing Senators. The 
Legislature by general enactment directs that the Senate and 
General Assembly, in joint meeting assembled, shall perform 
that duty. The Constitution of New Jersey vests all legislative 
power in the Senate and General Assembly, and recognizes 
them as the Legislature when in joint meeting assembled. By 
custom dating before the Constitution of the United States, and 
continued to the present day, the first act of the joint session 
has been to prescribe the rules for the government of that body. 
Under these circumstances can it be gravely insisted that the 
majority of this body was incompetent to make such a rule ? 

But if they had no power from their Legislative character, or 
from immemorial custon, to perform the duty confided to them, 
by the adoption of rules which seemed to them calculated to at¬ 
tain the ends in view; still they were bound by parliamentary 
law, and were clothed, at least, with that authority, which apper¬ 
tains to all deliberative bodies. Mr. Cushing says, C. IY, §3, 
44 In all collective bodies of men, assembled and acting together 
for the purpose of deliberating, and deciding upon any subject, 


23 


or for the purpose of selecting to any office, it is an admitted 
principle, that whatever is done or agreed to by the greater num¬ 
ber shall stand as the act or the will of the whole .” Section VI, 
“ The law of the majority is universally admitted in all Legisla¬ 
tive assemblies, unless in reference to particular cases, persons 
or circumstances, a different rule is prescribed by some paramount 
authority, or is agreed upon beforehand and established by the 
Assembly itself, by which a smaller number is permitted, or a 
larger number is required to do some particular act. But 
even in these cases it is the will of the majority that governs; 
because it is by a major vote in the first instance, that the rule 
itself is established.” In Part VI, Chapter 3, section 1826:— 
“ Every question which is propounded to a legislative assembly 
for its determination, and voted upon in any of the manners de¬ 
scribed, receives its decision according to the preponderance of 
the votes, which, unless some other rule is expressly prescribed, 
as there usually is in each assembly in reference to particular 
questions, is ordinarily effected by a majority. In those cases 
where the rules or customs of any assembly allow a vote to re¬ 
main on an equal division, the decision, as neither side prepon¬ 
derates, is necessarily in the negative. In many cases it is pro¬ 
vided, either by a constitutional requisition, or by rule , that par¬ 
ticular questions, in order to prevail, shall require more, or ad¬ 
mit of less , than the ordinary majority in their favor.” 

The forty votes given for Mr. Stockton—no one else having 
more than thirty-seven—was, then, an indication of the will of 
the majority , and that was the will of the whole . Every member 
elected was present and voted; no protest or objection was made. 
The result is that “the Legislature,” and every member of it, 
voted for, chose and appointed Mr. Stockton. The question is 
clearly within the principle of the case from Florida, which was 
unanimously decided by the Senate. The result of that case was 
to establish the principle that, until Congress shall pass an act on 
the subject, the State Legislatures may choose their own methods 
for the election of United States Senators. In this case it appeared 
that a poll viva voce was taken of the members, pursuant to the re¬ 
quirements of the Constitution of the State, and twenty-nine res- 


24 


ponded David L. Yulee, and twenty-nine blank ; whereupon, the 
presiding officer declared that no choice had been made; they 
then proceeded to a second and third vote with substantially the 
same result. On the 15th of January they again met in conven¬ 
tion for the same purpose, and upon a call of the roll, thirty-one 
members responded S. R. Mallory and twenty-seven voted for 
Mr. Yulee and others. Whereupon the president declared Mr. 
Mallory to be duly elected. Neither the record nor any other 
evidence in the case shows that any objection was made at the 
time. The certificate of election was granted to Mr. Mallory, 
and he, having been qualified, held the seat. 

Mr. Yulee contested the seat on the ground that he was him¬ 
self elected at the first vote, because there was a quorum of each 
House present, and he being the only qualified person voted for, 
had a majority of the legal votes. Those who responded “ blank,’* 
voted for no qualified person, and waived their rights. 

Mr. Mallory opposed to this inference a resolution of the two 
houses, adopted in 1845 by concurrent vote, which had never 
been rescinded, and was in the following words : 

“ Resolved , That a majority of all the members elect, compos¬ 
ing the two Houses of General Assembly, shall be necessary to 
determine all elections devolving upon that body.” 

The whole number of members elect was fifty-nine, and Mr. 
Yulee not having a majority of that number was not elected, if 
the rule was binding and valid. 

Mr. Bright, on behalf of the committee to whom the Florida 
case was referred, made a report, which says:—“ It may be ob¬ 
served that the power given to the Legislature to regulate the 
time, place and manner, applies as well to Representatives as to 
Senators; and here again are other diversities in the manner of 
exercising it. Some States elect by a plurality of votes ; others 
by a majority, and others have required at the first trial a ma¬ 
jority, and a plurality afterwards. Some again (until Congress 
made a law upon the subject,) elected by a general ticket, others 
either by a single district or districts, entitled to more than one 
according to convenience. None of these modes of electing Sena¬ 
tors or Representatives have been held unconstitutional, but mem- 


25 


bers have been uniformly admitted to their seats, whether elected 
in one or more of these modes. These practices have at all times 
existed, and have uniformly been recognized as constitutional, 
proving clearly that the discretion reposed in the Legislatures of 
the States may be exercised in a diversity of ways, and yet be a 
sufficient compliance with the requirements of the Constitution. 
With these views, the committee recommend the adoption of the 
following resolution: 

“ Resolved , That the Hon. Stephen R. Mallory was duly 
elected a member of the Senate of the United States from the 
3d day of March, 1851.” 

After lengthy debate the report of the committee was adopted 
and the resolution unanimously passed. 

Mr. Toombs, in Harlan’s case, (Cong. Globe, 3d session 
34th Congress, p. 299,) says :—“ Iowa has a perfect right, until 
Congress acts, to prescribe the mode in which her State Sena¬ 
tors and Representatives shall cast their votes, as she pleases. 
It ought to be fixed, not as the Senator from Maine says, by the 
particular Legislature which elects. There is nothing in the 
Constitution like that. Power is given to ‘ Congress ,’ and in ex¬ 
actly the same words to the ‘ Legislature ,’—any Legislature 
which may be lawfully constituted under the Constitution of 
Iowa. There is perfect and absolute power on this subject in 
the Legislatures in the States until Congress acts. When Con¬ 
gress chooses, it can define how those persons whose duty it is 
under the Constitution to elect Senators, shall do so. The State 
Legislatures can exercise the right. It can be done by majority, 
or by a plurality , or in any way, so that all the electors are al¬ 
lowed to vote, and none are deprived of their right.” 

The 1st article of the Constitution of the United States 
enacts that the House of Representatives shall “choose” their 
“ Speaker” and other officers. 

In reference to an election for Speaker, Mr. Cushing says: 
“ In regard to the number of votes necessary to elect, it seems 
to be a rule established at least by practice and usage, that 
nothing short of an absolute majority will be sufficient, even in 
those States where the election of other officers takes place by 


26 


a plurality.” But he adds in a note: “In the House of Repre¬ 
sentatives in Congress the Speaker has always been elected 
without any previous order of the House, or provision of law to 
that effect, but simply in virtue of a resolution of the House to 
proceed to the election of a Speaker. On one occasion, and 
the only one it is believed that ever took place, the principle 
was departed from, the election of speaker of the House in the 
31st Congress, contested principally between tile Hon. Robert 
C. Winthrop, of Massachusetts, who had been Speaker of the 
last House, and the Hon. Howell Cobb, of Georgia. That 
memorable contest began on the 3d of December, 1849, and 
ended on the 22d, after sixty-three ballotings. Previous to the 
last balloting a resolution was adopted, that at the next trial, 
in order to insure an organization a'plurality should he sufficient 
to elect. At the last balloting Mr. Cobb received 102 votes out 
222, and was accordingly declared elected. 

It is well known that after a much more severe struggle in 
1856, Nathaniel P. Banks, Jr., on the one hundred and thirty- 
third ballot was elected Speaker under the plurality rule, * 

having only 103 votes out of 214. 

Now it will be remembered that in the House of Represen¬ 
tatives the Speaker has always been elected without any previous 
order of the House, while in New Jersey the joint meeting have 
always made their own rules. 

That an absolute majority by parliamentary law is required 
for a presiding officer where all other appointments may be 
made by a plurality. 

That the Speaker is required to be “chosen” as well as 
Senators under the Constitution. 

If a plurality has twice elected or “ chosen ” a Speaker of the <- 

House , cannot a plurality when a majority has so ordered , 
elect or choose a Senator ? 

It may be urged that the consequences which would follow 
from permitting less than a majority of the whole to elect, 
furnish a conclusive argument against it. That if two members 
vote for one person, and every other member by himself for 
different individuals, the person having two votes would have 


27 


a plurality, and two votes might elect. That this argument is 
mere sophistry is easily manifested : 

1st. The question is, whether the New Jersey Legislature 
in joint meeting assembled had the constitutional right to choose 
a Senator by adopting by a majority vote a plurality rule ? 
This argument amounts to no more than that there might be 
cases “ where the rule would he inconvenient.” It is an argu¬ 
ment ah inconvenienti alone, and might be properly urged to 
prevent the adoption of the rule, but it does not touch the 
question of power on the part of the joint meeting to make it. 

2d. After the majority had adopted the rule by parliamentary 
law, 2 votes were 41, and 41 were 81. The majority adoption 
of the rule is the solemn pledge that they will accept the result 
as their own act. They vote for the candidate ivho has the 
plurality , in advance. 

8d. The argument from inconvenience applies equally to the 
e lection of members of the House of Representatives ; if a con¬ 
clusive argument in one case it is so in the other, for it is the 
same clause in the Constitution under which the elections are 
held, and from which the power is derived, and the con¬ 
sequence is that our election law and that of nearly every 
other State is unconstitutional, and we have never had a con¬ 
stitutional House of Representatives. 

4th. The majority rule did exist in Maine and New Hamp¬ 
shire, and was abolished as the most inconvenient of the two. 

5th. Nearly all the State appointments made by the joint 
meeting are made with only two or three voting; sometimes no 
vote is taken at all. It is done by agreement and consent, yet 
the silent assist in choosing the persons appointed. By way of 
example, in the joint meeting which elected Mr. Stockton, on 
motion of Mr. Ilolsman it was “ resolved that the vote for county 
judges and commissioners of deeds be taken by acclamation, 
and that the counties in which vacancies exist, be called in alpha¬ 
betical order.” When, on motion of Mr. Lake, a list of ten 
gentlemen were appointed commissioners. 

6th. That under the laws of at least six of the States where a 
majority of those present are permitted to cast the vote, a 


28 


majority of a quorum may elect, and the majority of the Legis¬ 
lature may not be present and voting at all. That under a similar 
rule the joint meeting of New Jersey have elected a United 
States Senator who took his seat unquestioned. 

II. Was the “time, place and manner” of holding such 

ELECTION PRESCRIBED BY THE LEGISLATURE IN THE SENSE OF 
THESE WORDS AS USED IN THE CONSTITUTION *OF THE UNITED 

States ? 

There is no objection to the “ time and place,” the only 
question is, was the “manner” prescribed in the sense intended 
by the Constitution of the Unite! States? 

Neither the words “time” or “place” affect the question 
whether a majority of votes, or less, is necessary to a choice.— 
The whole objection must be to the defective prescription of the 
“ manner.” 

If the word “manner” has no reference to number of voices 
that shall elect, then the failure of the Legielature to prescribe 
the number of voices necessary to a choice, is no objection to the 
indication, by the joint meeting, of the number of voices by 
which the will of the majority shall be expressed. In the ab¬ 
sence of any Legislative rule as to the number of voices neces¬ 
sary, the joint meeting, as a deliberative body, had full power 
under parliamentary usage, to determine, by a majority of its 
members, the number of votes which shall indicate their choice. 
In the present instance they declared that the vote of a plurality 
should indicate their choice; that vote indicated Mr Stockton. 
He was therefore the choice of the joint meeting in the manner 
indicated by the majority. 

But if the word “ manner” does relate to the number of voices 
necessary to a choice, then has no “ manner ” ever been pre¬ 
scribed by the Legislature of New Jersey, by concurrent action, 
but such “manner” has always been prescribed by the rules of 
the “Legislature in joint meeting assembled.” No Senator has 
therefore, ever been elected from New Jersey. All such elec¬ 
tions having been void. 


29 


The Legislature may prescribe by other means than a law.— 

It may exercise its authority by joint resolution, by rule and by 
ordinance. And each House prescribes rules for its own govern¬ 
ment. Under them the voice of the House may be taken in a 
variety of ways;—by acclamation, by tellers, by rising and by 
yeas and nays. When the action of either House is reported to 
the other, they cannot inquire into the means by which such ac¬ 
tion was arrived at; that is, controlled by the bodies themselves. 

^ Upon what principle then can the “joint meeting” be debarred 

from exercising the same privilege ? The rules of the Senate 
cannot bind them, for they are not the Senate; nor can the 
rules of the House, for the same reason. Yet there must be 
rules or there would be anarchy. 

Suppose, however, for the sake of the argument, that the 
“Legislature in joint meeting assembled,” is not the Legisla¬ 
ture alluded to by the Constitution of the United States, when 
it directs that the “ manner” of choosing Senators shall be pre¬ 
scribed in each State by the Legislature thereof; that the joint 
meeting although competent to elect, could not prescribe the 
“manner;” and you are driven to the inevitable conclusion 
that “ the manner 9 as the expression is used in the Constitution, 
does not necessarily include within its meaning the regulation 
of the number of votes necessary to a choice, for the act in sev¬ 
eral other States, as well as New Jersey fails to prescribe the 
number of votes necessary, and the manner therefore has never 
been 'prescribed in any of these States by the Legislature. Con¬ 
sequently, no Senators have ever been constitutionally elected 
therefrom. 

It seems then that the “ Legislature when in joint meeting 
assembled” are competent to prescribe the “manner” of election 
under the Constitution, or , “the manner” was sufficiently de¬ 
scribed by the statute. One or other of these propositions must 
be true. In either case, the constitutional requirement is com¬ 
plied with. 

“ The Legislature, in joint meeting assembled,” was the “ man¬ 
ner ;” by the statute, and the number of votes requisite to a 
choice—as well as the method of making the result of the indi- 


30 


vidual choice of its members the choice of the Legislature, and* 
properly manifesting it,—were questions of custom and parliamen¬ 
tary law; the authority to decide which, was inherent in the body 
from the necessity of the case, and was, moreover, an incidental 
power, resulting from the duty imposed by the Constitution of 
the United States, and the “ manner” prescribed by the Legisla¬ 
ture. 

Although the Legislature in joint meeting assembled, may 
not be able to pass a law or do any act which the Houses are 
required to do separately; when it is admitted that they can 
elect a Senator, it necessarily follows that they can pass rules 
for their goverance while in the performance of that duty. 

Mr. Fessenden said, in Harlan’s case, (34th Cong., 3d sess.,) 
speaking of the inherent powers of a Legislature when assem¬ 
bled in joint meeting :—“ The Convention being formed * * * 
it remains to inquire what were the incidents of the Convention 
itself. A Convention has certain legal incidents. It has the 
power to adjourn if it is legally formed. It has the power 
to decide what shall constitute a quorum, if there is no 
overruling constitutional provision on that point. It has the 
power to organize. It has the power to decide who shall pre¬ 
side over it. It has the power of perpetuation, unless its exist¬ 
ence is terminated by a superior power at a certain time. Then 
this Convention being assembled, whether under the statute or 
not, on coming together, had these incidents: the power of de¬ 
ciding how the Senator should be elected ; a power of deciding 
what should constitute a quorum; the power of deciding that it 
might adjourn from day to day, or do anything else that it saw 
fit to do , and was not prohibited from doing, by any provision of 
the Constitution of the United States.” 

The Constitution of the United States says “ the times, places 
and manner of holding elections for Senators, * * * shall 

be prescribed in each State by the Legislature thereof;” but it 
is silent as to the particular mode whereby such “ times, places, 
and manner” shall be prescribed; and when an act is required 
to be done without any limitation as to form, the body required 
to perform such act, may select any form it chooses. The Le- 


81 


gislature, therefore, may perform the duties imposed upon it in 
this instance either by statute, by concurrent resolution, by joint 
resolution, by ordinance, or by rule in joint meeting assembled. 
They are not confined to the mode by statute, for a statute re¬ 
quires the sanction of the Governor, and the Governor is no part of 
the “ Legislature.” But the second clause of the same section of 
the Constitution says “ Congress may at any time, by law , make 
or alter such regulations.” Here the manner in which Congress 
may perform this act, is expressly provided. It is “ by law” 
i. e . by statute; but the more comprehensive word “ regula¬ 
tions” i, e . rule, order, or law, is used when referring to the 
mode prescribed by the Legislature, viz : “may * * alter 

such regulations ” The Legislature, therefore, under the Con¬ 
stitution of the United States, having full power to prescribe 
“ the times, places, and manner” in any way it shall see fit, 
neither the Senate, nor the Congress of the United States can 
dictate to it the mode in which such duty shall be performed. 
Congress may “by law,” under the Constitution, “make” re¬ 
gulations of its own, or “ alter” those already made by the Le¬ 
gislature, but it cannot interfere with the Legislature in its 
selection of the mode by which it will perform the duty imposed 
upon it by the Constitution of the United States, and if Con¬ 
gress cannot interfere, much less can the Senate of the United 
States. As well might the Legislatures of the several States 
attempt to dictate to Congress the modes in which they shall 
execute the powers, which have been granted by the several 
States to the Union. 

Mr. Badger, in the discussion of the Florida case, says:— 
“The Constitution of the United States bestows upon the Legis¬ 
lature the power of prescribing the time, place and manner of 
electing the Senators and members of the House of Representa¬ 
tives. It confers upon them the whole jurisdiction, the entire 
power of making the law in regard to elections. The gentleman 
(Mr. Yulee) has stated that only the formalities of an election, 
the orderly method merely of conducting it, is committed to the 
Legislature, but not the law of elections . This, surely, is not so. 
Does not the Constitution of the United States give them the 


32 


whole power ? Certainly it does. The State has the power to 
prescribe the time, place and manner of the election; but Con¬ 
gress, the only other authority over the subject, has power only 
to regulate these three things. If, then, these do not include 
the whole power, then the whole power is not by the Constitu¬ 
tion conferred at all. But this cannot be; and'hence, subject 
only to the control of Congress, the State has the entire power 
over the subject.” 

Again be says :—“ Now we must recollect that on this subject 
we are dealing with a transaction which took place in Florida. 
In a legislative body of that State, which not only has power to 
prescribe its own rules, but also to decide judicially upon the 
existence and operations of a rule, so far as their elections are 
concerned.” 

Again he says :—“ Now whether these twenty-nine votes are 
to be considered as votes of assent, or no votes at all, depends 
entirely upon the laws and usages of the State of Florida. The 
Congress of the United States not having exercised the power 
which, under the Constitution, they might exercise, to interpose 
regulations in regard to the election of Senators, this election 
depended exclusively upon the rule prescribed by the Legislature 
of Florida. An attempt is made to show that there is some¬ 
thing in the decisions of other States and tribunals, something 
in the nature of a general parliamentary law, which controls the 
State of Florida on this point, and fixes the character of assent 
upon these blank votes, or makes them nullities. Permit me to 
say, that if it were shown that every other State in the Union, 
or on the face of the earth, had laid it down as a rule that blank 
votes should be rejected, or counted as votes of assent, this would 
not in the slightest degree affect this election, if a different rule 
or practice has prevailed in Florida; for Florida, in the absence 
of any legislation by Congress, has as absolute a right to pre¬ 
scribe a rule or adopt a practice of her own, as to the mode of 
signifying assent or dissent, as any other tribunal, or legislature, 
or authority on earth. So that the question at last comes 
around, not as to what is the rule of the Legislature of New 
York or Rhode Island, but what is the rule established by the 



33 


Legislature of Florida ? That is the only question. Allow me 
to remark that this Senate has no jurisdiction to 'prescribe any 
rule or to control any rule that has been prescribed in a State ; 
our function is purely judicial; ive are to judge of the election ,— 
to say whether a party has been elected according to the rules or 
practice prevailing in the State from which he comes” 

It has been the uniform custom for the Legislature of New 
Jersey in joint meeting assembled, to make rules for its govern¬ 
ment. Mr. Stockton was chosen under the rules adopted by the 
joint meeting. 

Delegates to the Continental Congress were elected in New 
Jersey in joint meeting before the adoption of the Constitution of 
of the United States. Senators have always been elected in joint 
meeting, and no joint meeting has ever assembled in New Jer 
sey that did not adopt rules for its own government. Both un¬ 
der the old and new Constitution of New Jersey, the acts of the 
Legislature which prescribed the “ manner” of election of United 
States Senators fail to go into detail as to the form of taking the 
\ sense of the joint meeting, because by both Constitutions, the 

two Houses are clothed with all Legislative power , and are a 
constitutional Legislature when in joint meeting assembled , and 
because the custom derived from parliamentary law for them to 
to make the rules for the joint meeting, in joint meeting, each 
meeting for itself, was older than the Constitution of the United 
States. 

A brief historical examination of this question will place it 
beyond doubt. 

The Constitution of the United States went into operation 
March 4th, 1789. 

^ The old Constitution of New Jersey, which remained in force 

until 1844, went into operation 2d July, 1776. 

That Constitution vested the government in a Governor, Le¬ 
gislative Council and General Assembly. After providing for 
the election of the two branches of the Legislature, it declares 
that the Council and Assembly jointly, at their first meeting 
after each annual election, shall by a majority of votes, elect 
some fit person within the colony to be a Governor for one year, 
3 


34 


who shall be constant President of the Council, and have a cast¬ 
ing vote in their proceedings. 

The articles of confederation became obligatory on all the 
States in March, 1781. They declared that delegates should 
be chosen in such manner as the Legislature of each State should 
direct. 

Accordingly by an act passed in 1783, section 22, it was en¬ 
acted that the Council and Assembly in joint meeting at the first 
sitting of the Legislature after the annual election, and at any 
other time when the same may be necessary, shall elect and 
choose any number of delegates not less than three nor more 
than seven, to represent this State in the Congress of the United 
States, and shall agree upon the form of credentials to be given 
them of their appointment, which credentials signed by the chair¬ 
man of the joint meeting, shall authorize the said delegates to 
sit and vote on the part of this State, in the Congress of the 
United States, during the year or time for which they are 
elected, unless in that time superseded by a new appointment; 
and it was further enacted in section 25, that no person shall 
be hereafter elected, a delegate to represent this State in the 
Congress of the United States, unless he hath been a freeholder 
within this State for at least three years, and an inhabitant of 
the same for at least seven years next before his election, and 
worth one thousand pounds in real and personal estate within 
this State. In addition, it was required that he should take 
before one of the judges of the court of common pleas of the 
State the oaths of abjuration and allegiance. 

The joint meeting was established, then, by our old Constitu¬ 
tion long before the Constitution of the United States. It was the 
instrument of electing our Governor. 

By the Articles of Confederation the delegates were, almost 
in the language of the present Constitution of the United States, 
to he chosen in such manner as the Legislature shall direct. The 
Legislature directed in Joint Meeting. From 1781 to 1790, the 
Council and Assembly met sometimes in the house of Mr. How¬ 
ell, in Trenton, in the library of the college at Princeton, in the 
Methodist Church, in the city of Burlington, and in other places. 





35 


They made their own rules in reference to all other matters ex¬ 
cept the number necessary to elect the Governor which was pro¬ 
vided in the Constitution. In reference to other officers when 
no rule was adopted as to the number necessary to elect, they 
elected not by an absolute majority of the whole body, but by a 
majority of those present. In case a majority of those present 
was not attainable, the rules of practice required that only the 
two highest candidates should be voted for on the next ballot.— 
As, for example. 

Nov. 25th, 1783. The Council and Assembly met at the 
house of Francis Witt in Trenton John Schurman having de¬ 
clined his appointment as Treasurer, the joint meeting proceeded 
to the election of another person in his room. Ephraim Harris, 
Moore Furman and James Mott were nominated. Harris had 14; 
Furman, 6 ; Mott, '20. u Whereby it appears that neither can¬ 
didate had a majority of the votes present; therefore , the two 
highest were voted for again.” 

This rule of the joint meeting, requiring the name of the low¬ 
est candidate to be dropped, was only one means of expressing 
the will of the majority. It compelled certain members either 
to remain silent, or cast their votes for one of the two highest 
candidates. Strictly speaking this is only another means of de¬ 
claring that the candidate who in reality is but the choice of a 
minority of the members, should be formally declared to be the 
choice of a majority. A majority of the members present being 
unable to agree in their choice of an individual, consent that the 
parliamentary rule requiring a majority shall be complied with, 
by compelling certain of the members to forego their preference. 
In order to do this certain members must voluntarily surrender 
their rights, otherwise no determination could be arrived at by 
the majority. Is not this only another, and a more arbitrary 
manner of declaring that the choice of a plurality shall be the 
choice of a majority of the whole? 

The rule which appears to have been always adopted at the 
commencement of the session was: 

“ Resolved , That the election of State officers during the 


86 


present session be viva voce , and that all officers be put in 
nomination at least one day before.the election.” 

In reference to delegates, the usual entry is in this form : 

“November 23, 1780. The Council and Assembly met at 
the house of Mr. Bergen, in Trenton. 

“ The joint meeting proceeded to the election of delegates to 
represent this State in Congress, and the votes being taken, 
the Honorable John Witherspoon, Abraham Clark, William 
Churchill Houston, William Paterson, William Barnett, Es¬ 
quires, were duly elected.” 

And a resolution followed empowering them to vote and 
represent the State in the Congress of the United States of 
North America. 

When then, in 1789, the Constitution of the United States 
became operative, the clause which left “ the times, places and 
manner” of the election of Senators and Representatives to the 
Legislatures of the several States, was in accordance with the 
plan which had been thirteen years in use. 

In 1790, on the 12th of November, the Legislature of New 
Jersey passed another act in reference to the duties required of 
New Jersey by the Constitution, entitled “An Act to prescribe 
the manner of appointing Senators of the United States, and 
electors of the President and Vice President of the United 
States, on the part of this State.” 

The first section is in these words: “ Be it enacted by the 
Council and General Assembly of this State, and it is hereby 
enacted by the authority of the same, That Senators of the 
United States on the part of this State shall be appointed by 
the Council and General Assembly of this State in joint meeting 
assembled, on the first Tuesday of November of every year in 
which this State is authorized to elect a Senator of the United 
States, at the place where the Legislature shall then sit, and on 
such other day or days as may be appointed by the Congress of 
the United States.” The act provides for the Governor’s filling 
vacancies when the Legislature is not in session, the appoint¬ 
ment of electors for President, and concludes: “ That every 
person who shall be elected a Senator or elector on the part of 


37 


this State, shall be commissioned by the Governor of this State, 
or the person administering the government for the time being, 
under the great seal of the State. 

There was a supplement passed in October, 1796, and the 
18th of January, 1805, merely referring to the time of election, 
Congress having left the time, place and manner to the Legis¬ 
lature. They say as to Senators as they did in reference to 
delegates, “ by the Council and General Assembly of this State 
/ in joint meeting assembled .” That Council and General 

Assembly under this Constitution being the Legislature, and 
under it, acting in joint meeting, to elect the Governor. 

The joint meeting, November 13th, 1794, adopted for their 
government the rules and orders of the House of Assembly.— 
November 20th, 1794, fifteen rules and orders were adopted for 
the government of the joint meeting, which, with occasional ad¬ 
ditions and alterations, have been adopted since that time. They 
were as follows: 

“ 1. That the election of State Officers during the present ses¬ 
sion be viva voce , unless when otherwise ordered; and that all 
officers be put in nomination at least one day before their elec¬ 
tion. 

“ 2. That the chairman shall not be entitled to vote except in 
case of a tie, and then to have a casting vote. 

“ 3. That the chairman attend carefully to the preservation of 
order and regularity in transacting the business of the joint meet¬ 
ing; that he shall not engage in any debate or propose his 
opinion on any question without leave of the joint meeting. 

“4. That every member, when he speaks, shall stand up in 
his place, and address himself to the chair. 

“5. That in all debates and proceedings the members observe 
the strictest decorum, and that if any one use indecent ex¬ 
pressions, or utter any personal reflections, or otherwise offend 
herein, he be censured according to the nature and aggravation 
of the offence. 

“ 6. That no debate ensue or question be put as a motion, 
unless it be seconded, when it shall be open to debate, and the 
same receive a determination by the question, unless it be laid 


38 


aside by the joint meeting, or motion be made to amend it, to 
postpone it, or for the previovs question. 

“ 7. The previous question shall be in this form : Shall the 
main question now be put; and until decided, shall preclude all 
amendment and further debate on the main question. 

“ 8. If- any motion contain more than one simple question, 
any member may have it divided into as many parts as there 
are distinct questions, if seconded in his motion. 

“ 9. That no member speak more than twice on the same 
subject in the same debate without leave of the House. 

“ 10. That all questions of order be determined by the 
Chairman, subject to an appeal to the joint meeting, when 
demanded by four members. 

“ 11. That when two or more members rise to speak nearly 
at the same time, the Chairman shall decide who shall speak 
first. 

“ 12. When any question is stated, and by the joint meeting 
agreed to be put, no member shall be at liberty to withhold his 
vote without the leave of the joint meeting. ^ 

“ 13. That the names of the members voting and for whom 
they have voted shall be entered on the minutes, if moved for 
and seconded. 

“ 14. That the joint meeting may adjourn when the list of 
nominations is not gone through with. 

“ 15. That re-appointments may be made without resigna¬ 
tions or the commissions being expired, if the commissions of 
the persons to be re-appointed expire the same sitting in which 
the joint meeting shall be held.” 

October 28th, 1796, it was resolved that the rules and orders 
established by the joint meeting on the 20th of Nov. 1794, as 
entered on their journal for that date be the rules for the gov¬ 
ernment of this joint meeting until otherwise ordered. 

In 1797, the rules of 20th of Nov., 1794 were adopted with 
an additional rule opening the doors of the gallery, &c., &c. 

The journals of each year usually set out the rules in detail, 
but occasionally only refer to the portion altered, stating the 


39 


rales of the last joint meeting were adopted, with an exception, 
addition, or alteration, as the case might be. 

On the 2d day of September, 1844, a new Constitution went 
into operation in New Jersey, which declared u the legislative 
power shall be vested in a Senate and General Assembly.” 
In article T, section 2, in providing for the appointment of 
civil officers, it says judges of the courts of common pleas shall 
be appointed by the “ Senate and General Assembly in joint 
meeting .” So with the Treasurer and Keeper of the State 
Prison and other officers. 

The joint meeting is, under our Constitution, the Senate and 
General Assembly, in which all legislative power is vested. 

It is provided that the Governor shall be elected by the legal 
voters of this State, “ the person having the highest number of 
votes shall be the Governor.” If two or more shall be equal 
and highest in votes; one of them shall be chosen Governor by 
the vote of a majority of the members of Houses in joint meeting . 

The necessity for expressing that it should be a majority of 
both Houses in this case, excludes the idea of any restraint on 
* v the power of the joint meeting to make their own rules, as they 

had been accustomed to do in all others. 

April 2d, 1845.—Peter D. Yroom, Henry W. Green, Wil¬ 
liam L. Dayton and Stacey G. Potts were appointed to revise 
the laws, suggest amendments, &c. 

The present act in reference to the appointment of United States 
Senator is to be found in their revision on page 806, as it is now 
in Nixon’s Digest, page 547, as follows: 

“ 1. Be it enacted by the Senate and General Assembly of 
the State of New Jersey , That Senators of the United States 
on the part of this State, shall be appointed by the Senate and 
w General Assembly of this State in joint meeting assembled; and 

in case a vacancy or vacancies shall happen, by death or other¬ 
wise, at any time during the sitting of the Legislature, then and 
in such case, the vacancy or vacancies so happening shall be 
filled during such sitting, by the Senate and Assembly of this 
State; and if a vacancy or vacancies, by the death of either or 
both of the said Senators, or otherwise however, shall happen 


40 


during the recess of the Legislature, then the Governor of the 
State, or in case of his death, absence or other disqualification, 
the person administering the government for the time being, 
may make a temporary appointment or appointments until the 
next meeting of the Legislature, which shall then fill such va¬ 
cancy or vacancies. 

2. And be it enacted, That every person who shall be elected 
a Senator on the part of this State, shall be commissioned by 
the Governor of this State, or the person administering the gov- ^ 

ernment for the time being, under the great seal of the State.’’ 

The Legislature were no longer the Council and General As¬ 
sembly, but the Legislative power had been vested in the Sen¬ 
ate and General Assembly by the new Constitution, and they 
are commanded by the Constitution of the United States to pre¬ 
scribe the manner. Hence the changed form of the act. 

In 1845, 1846, 1847, 1848, 1849 and 1850. The rules for 
the election were prescribed as they had been before the adop¬ 
tion of the new Constitution; sometimes adopting the rules of 
the last joint meeting, and sometimes altering them. 

In 1851, after electing the officers in the usual way, the Jour¬ 
nal states that the following rules for the government of the joint 
meeting were read, (and after setting them out at length,) 

Mr. Edward G. Rogers moved that’ the first rule be amended 
by striking out the words viva voce , and inserting the words by 
ballot in lieu of it; not agreed to. Adjourned to February 14, 

1851. 

Mr. Canfield offered the following resolution : 

“ That no person shall be elected to any office at any joint 
meeting during the present session, unless there be a majority 
of all the members elected personally present, and agreeing 
thereto.” Resolution agreed to. % 

Nominations were made for Senator, 40 votes were necessary 
to a choice under the rule, no one receiving the requisite num¬ 
ber, the joint meeting adjourned. 

After various adjournments and efforts to elect, Mr. Hineline 
offered the following: 

“ Resolved, That the rules of the joint meeting requiring a 


41 


majority of all the members elected to the Legislature to elect 
any officer be rescinded and that a majority of those voting be 
sufficient to elect any officer to be appointed by this joint meet¬ 
ing. The motion being agreed to, a ballot ^vas taken and a 
United States Senator declared elected by thirty-nine votes ; 
they being a majority of all cast. 

In 1852 they adopted fifteen resolutions which are set out in 
the Journal to govern the joint meeting, on motion of Mr. Alex¬ 
ander. 

In 1853, the same, on motion of Mr. Sitgreaves. 

In 1854, on motion of Mr. Mulford. 

Some of the officers “chosen ” by the joint meeting in nearly 
overy session were chosen without a ballot or a poll—by accla¬ 
mation as it was termed. 

1855.—Mr. Allen moved that the rules of the last joint meet¬ 
ing be the rules for the government of the present joint meeting, 
until otherwise ordered. Motion was agreed to, and the rules 
were read and adopted. 

Mr. Allen moved the following as an additional rule for the 
government of this joint meeting. 

“ That all candidates for office, upon receiving a majority of 
the votes cast by this joint meeting, shall be declared duly 
elected.” 

Motion agreed to, and rule adopted accordingly. 

Mr. Roberts moved the following: 

“ Resolved , That this joint meeting will vote for the officers 
on nomination by voice, except for the Treasurer and Keeper of 
the State Prison—which officers shall be voted for by ballot, 
after the election of the other officers.” 

Mr. Allen moved to amend the resolution by striking out the 
words “ by ballot.” 

Motion to strike out agreed to. 

Mr Iloxsey moved to amend the resolution by striking out 
all after “Resolved,” and inserting, “that this joint meeting in 
voting for Treasurer and Keeper of the State Prison will vote 






42 


by ballot.” Motion to strike out and insert was not agreed to, 
&c., &c., &e. 

1859—Mr. Buckley moved that the rules of the last joint 
meeting be adopted as the rules for the government of the pre¬ 
sent joint meeting, until otherwise ordered. 

Mr. Chandler moved as an amendment to the said motion that 
the 12th rule of the last joint meeting be omitted, and that the 
vote on his amendment be taken by ballot. 

Mr. Buckley moved that the vote be taken viva voce . 

The vote was ordered to be taken viva voce ; the amendment 
not agreed to, and the rules of the last joint meeting adopted. 

In 1860, on motion of Mr. Buckley, the rules of last joint 
meeting were adopted and set out in the journal. 

In 1861, Mr. Demarest moved that the rules of the last joint 
meeting be adopted as the rules for the government of the 
present joint meeting until otherwise ordered, which motion was 
agreed to, and said rules adopted as follows: 

a l. That the election of State officers during the present 
session be viva voce unless when otherwise ordered. 

“2. That the Chairman shall attend carefully to the pre¬ 
servation of order and regularity in transacting the business of 
the joint meeting, and that he shall not engage in any debate, 
or propose his opinion on any question, without leave of the 
joint meeting. 

“ 3. That every member when he speaks shall stand up in his 
place, and address himself to the Chair. 

“ 4. That in all debates and proceedings the members shall 
observe the strictest decorum, and that if any one use indecent 
expressions, or utter any personal reflections, or otherwise 
offend herein, he be censured according to the nature and 
aggravation of the offence. 

“ 5. That no debate ensue, or question be put on a motion, 
unless it be seconded, when it shall be open to debate, and the 
same receive a determination by the question, unless it be laid 
aside by the joint meeting, or a motion be made to amend it, 
to postpone it, or for the previous question. 

“ 6. The previous question shall be in this form : 4 Shall the 


43 


mam question now be put ?’ and unless decided, shall preclude 
all amendments and further debate on the main question. 

“ 7. If any motion contain more than one single question, 
any member may have it divided into as many parts as there 
are distinct questions, if seconded on his motion. 

u 8. That no member speak more than twice on the same 
subject in the same debate, without leave of the joint meeting. 

“ 9. That all questions of order be determined by the Chair¬ 
man, subject to an appeal to the joint meeting when demanded 
by four members. 

“ 10. That when tw r o or more members rise to speak nearly at 
the same time, the Chairman shall decide who shall speak first. 

“ 11. When any question is stated, and by the joint meeting 
agreed to be put, no member shall be at liberty to withhold his 
vote without leave of the joint meeting. 

“ 12. The names of the members voting, and for whom they 
have voted shall be entered on the minutes, if moved for and 
seconded ; and the ayes and nays shall be entered upon the 
journal upon every question taken in the joint meeting, other 
than questions of appointment, when moved for and seconded 
by five members, except the vote be unanimous. 

“ 13. That the joint meeting may adjourn when the list of 
nominations is not yet gone through with. 

“ 14. The appointments or re-appointments may be made 
without resignation or the commissions being expired, if the 
commissions of persons in office shall expire the same sitting or 
within two months thereafter ; provided , that when a new appoint¬ 
ment is made, the person so appointed shall not be considered 
as in commission until the expiration of the commission of the 
^ former person whose place it is to supply. 

u 15. That in all questions the Chairman of the joint meeting 
be called upon to vote in his turn as one of the Representatives 
in the Senate or Assembly, but that he have no casting vote as 
Chairman. 

“ 16. That all candidates for office, upon receiving a majority 
of the votes cast by this joint meeting, shall be declared to be 
duly elected.” 



44 


It will be observed that in the second rule adopted in 1794, 
the chairman was not entitled to a vote, except in case of a tie, 
and then to have a casting vote; and by the fifteenth rule, as 
above, he votes in his turn as a member, but has no casting vote. 

In 1862 Mr. Demarest moved that the rules of the last joint 
meeting be adopted for the government of this joint meeting. 

On motion of Mr. Cook, the rules were read. 

Mr. McGrath moved to amend so that the voting would be by 
ballot. The yeas and nays being demanded resulted 89 yeas, 
40 nays. 

So said amendment was not agreed to. The main question 
was then put and agreed to. 

In 1863 on ,motion of Mr. Randolph, the rules of the last joint 
meeting were adopted for the government of this joint meeting. 

In 1864 on motion of Mr. Buckley, the rules of the last joint 
meeting were adopted for the government of this joint meeting. 

In 1865—the joint meeting that elected Mr. Stockton—the 
Journal says: 

Feb. 15.—Mr. Holsman moved that the rules of the last joint 
meeting be adopted for the government of this joint meeting, ex¬ 
cept the 16th rule, for which he offered the following resolution : 

Resolved , That no candidate shall be declared elected unless 
upon receiving a majority of the votes of all the members elected 
to both Houses of the Legislature. 

Which was agreed to. 

March 15.—The day to which the joint meeting had been reg¬ 
ularly adjourned. 

Mr. Holsman offered the following resolution and moved its 
adoption : 

Resolved, That the resolution that no candidate shall be de¬ 
clared elected unless upon receiving a majority of the votes of 
aL the members elected to both Houses of the Legislature, be 
rescinded, and that any candidate receiving a plurality of votes 
of the members present, shall be declared duly elected. 

Which resolution was adopted by a majority of all the mem¬ 
bers elected. 

So that the rules of this joint meeting were the first fifteen 


45 


rules adopted in 1861, and this last resolution in place of the 
sixteenth. That is, the plurality rule adopted in place of the 
rule requiring a majority of all elected which had been on the 
first day of the session of the joint meeting substituted for the 
16th rule of the last joint meeting which required only a ma¬ 
jority of those voting. 

Enough has been said to show that the joint meeting in New 
Jersey have always made their own rules. Being the Legisla¬ 
ture, under the Constitution, they needed no directions as to 
the rules of their joint action, hut made them by parliamentary 
law, and custom dating before the Constitution and continued 
to the present day. 

The Legislature acquiesced in the mode of the election , and 
unanimously ratified it as their choice. 

The Journal shows that each House separately in the usual 
form, unanimously adopted a resolution to go into joint meeting. 
Every member of both Houses was personally present at the 
time specified in pursuance of the resolutions, and voted to estab¬ 
lish rules for the government of the body in conformity with the 
uniform practice since the adoption of the Constitution of the 
United States. Among others : “ That no candidate should be 
declared elected unless upon receiving a majority of all the mem¬ 
bers elected to both Houses of the Legislature.” At an adjourn¬ 
ed session, every member of the Legislature elected was present 
in pursuance of resolutions of the Houses to that effect, for the 
purpose of electing a United States Senator, when the vote was 
taken to rescind that rule, and substitute for it, a rule that any 
candidate receiving “ a plurality of votes of the members present 
shall be declared duly elected.” 

This rule was adopted by a majority of all the members elected, 
every member elected present and voting. Mr. Stockton received 
forty votes, no one else receiving more than thirty-seven; there 
being four scattering votes. 

Mr. Stockton was declared elected, in the presence of the 
whole Legislature; not one of whom expressed any dissent. 
The joint meeting transacted some other business and adjourned 
sine die ; the Legislature was in session some fifteen days after 



46 


the adjournment of the joint meeting, and finally adjourned for 
the session without one word of protest. 

Mr. Stockton was duly commissioned by the Governor of the 
State, under the great seal of the State as provided by the act. 

This was the will of the Legislature expressed in the manner 
the majority had qweviously prescribed , and subsequently acqui¬ 
esced in by all. It can , therefore , in no proper sense , be called a 
plurality election. 

The two bodies met and gave a joint vote under a law which 
authorized it. The Houses separated; neither House objected ; 
of course they both assented, and the election is valid. 

It is a familiar rule, applicable to all elections, by political 
bodies, that the public declaration of the result of an election 
by the body itself or its presiding officer, with the acquiescence 
of every individual member, is conclusive. 

It is also as well established that every individual member 
present at such public declaration of the result of the election, 
and at that time passing it sub silentio , acquiesces. 

Multitudes of questions are determined in a legislative body 
without actual vote, merely by the declaration of the presiding 
officer, no member dissenting. 

Cushing’s Manual says, section 1792: “In order that any 
proposition may become the act or will of the House, it is 
necessary that it should receive the assent of a majority of the 
members, which may be manifested in two ways, namely, either 
by no one objecting to the proposition, in which case the sense 
of the House is ascertained by their common consent, the thing 
being sufficiently declared when no man contradicts it; or by a 
majority of the members declaring themselves in its favor.” 
“ Consensus tollit errorum , is a maxim of the common law, and 
the dictate of common sense, and it may be implied as well as 
expressed.” 

Broom, Maxims page 103, says : “ Where at the trial of the 
cause, a proposal was made by the judge in the presence of the 
counsel on both sides, who made no objection, that the jury 
should assess damages contingently, with leave to the plaintiff 
to move to enter a verdict for the amount found by the jury, it 


47 


was held that both parties were bound by the proposal, and that 
the plaintiff’s counsel was not therefore at liberty to move for a 
new trial on the ground of misdirection, for qui tacet cons entire 
videtur , the silence of counsel implied then their consent to the 
course adopted by the judge.” 

In the Queen v. Green, 2 Q. B., C. J. Denman said: “ I am of 
opinion that the objection here taken is good. It is not 
necessary to scan particular cases. The principle is, he tha 
concurred in inducing a party to exercise an office cannot be 
heard in this court on an application in this court to turn him 
out of that office.” 

Lord Kenyon said in Rex v. Clarke, 1 East. 46 : “ The Court 
will not listen to a corporator who has acquiesced or perhaps 
concurred in the very act which he afterwards comes to com¬ 
plain of when it suits his purpose.” 

In Cameron’s case, 34th Congress, 3d session, it was alleged 
by the protestants that the Senate did not appoint a teller and 
perform other duties at the time prescribed by the statute. The 
report of the Committee on the Judiciary, submitted by Mr. 
Benjamin, contains the following language: “But where, as in 
the present case, both Houses proceeded without objection from 
any source to perform their constitutional duty of electing a 
Senator, the necessity of complying with any particular forms 
required by law may fairly be considered as waived by common 
consent, and it is entirely too late , after the result of the voting 
has been ascertained , to raise a question as to the mode of 'pro¬ 
ceeding .” 

Mr. Bayard said in Harlan’s case : I can well understand that 
where a quorum votes, the acquiescence of the two bodies, after 
the election is made and after the severance of the joint meet¬ 
ing, precludes inquiry into the question of legality, because there 
is necessarily assent, in the same manner that we assent to votes 
taken here without a quorum, when no yeas and nays are called 
and no decision had. That principle is familiar in a variety of 
other cases. Acquiescence binds political bodies, and all other 
bodies. Where the contrary does not appear they are supposed 
to be present and to assent, not as a presumption of fact, but as 


48 


a presumption of law ; and a presumption of law is not contro¬ 
vertible by evidence. That is the meaning of what I say. If 
when the vote has been taken a majority of both bodies being pre¬ 
sent, by a quorum, a person is declared elected, and no objection 
is made by the action of either House singly, and they separate, 
of necessity it is a presumption of law that the election was valid, 
and neither House can afterwards look into it. 

Mr. Bayard said, in the same debate, u I can .understand per¬ 
fectly well, under the principle of passing a measure sub silentio 
that we have no right to inquire into the question how members 
of the Legislature, whether of the Senate or House, voted in re¬ 
gard to the election of a Senator of the United States, if the 
certificate comes here authenticated according to the laws of the 
State. Where the two bodies meet and give a joint vote, under 
a law which authorizes the expressed will of a majority of the 
whole to govern, and then the Houses separate.and neither House 
objects to the election , of course they both assent and the election 
is valid.” 

Mr. Cushing says in his treatise on the law and practice of 
Legislative assemblies : “the rule of decision in all councils and 
deliberative assemblies, whose members are equal in point of 
right, is, that the will of the greater number present and voting 
—the Assembly being duly constituted— is the will of the whole 
body. Hence whatever is regularly agreed upon by a majority 
of the members of a Legislative assembly is a thing ‘ done and 
past’ by that body.” 

The principle as universally admitted is again emphatically 
pronounced by the same high authority in Part 1st, Chap. IV, 
Section III, under the title “ Of the principle upon which 

THE RESULT OF AN ELECTION IS DETERMINED.” 

“In all collective bodies of men, assembled and acting together 
for the purpose of deliberating and deciding upon any subject, 
or for the purpose of electing to any office, it is an admitted 
principle, that whatever is done or agreed to by the greater num¬ 
ber shall stand as the act or will of the ivhole. This principle 
assumes as its basis, the absolute and perfect equality of all the 
individuals one with another, who enjoy the right of suffrage, in 


49 


the possession of the elements essential to the determination of 
any act to be done, or to the formation of any judgment to be 
pronounced, or to effecting any election to be made as the act, 
judgment or choice of the whole.” Again, Part YI, Chap. 2, 
Section 1792, says :—“ In order that any proposition may be¬ 
come the act, or express the sense, judgment, opinion, or will of 
the House, it is necessary that it should receive the assent of a 
majority of the members, or of such other number as may be 
agreed upon , or otherwise fixed beforehand ; which maybe man¬ 
ifested in two ways, namely: either by no one’s objecting to the 
proposition—in which case the sense of the House is ascertained 
by their common consent, the thing being sufficiently declared 
when no man contradicts it; or by a majority or the requisite 
number of the members declaring themselves in its favor,—in 
which case the sense of the House is ascertained by a question 
put and determined.” 

The act of the Legislature left the election to the expressed 
will of a majority of the joint meeting. That majority agreed 
that the “ choice” of the Legislature should be indicated by the 
plurality rule* This was the will of the majority, their choice. 
It was the act, judgment, and choice of the whole. It is the 
“ Legislature” that elects. Not the members thereof. They 
act under the rules that they may adopt, and the principles of 
parliamentary law as established by authority and usage. The 
question is not what any individual member prefers, nor how 
he manifests his preference. It is, what is the choice of “ the 
Legislature” as legally manifested. As a private corporation 
acts under the common seal of the body, properly authenticated, 
the Legislature of New Jersey provides how the result of their 
choice shall be manifested to the United States Senate and to 
the world, by a commission under the great seal of the State. 

When Mr. Stockton was declared elected in the joint meeting, 
according to the manner of choice agreed upon by the whole, it 
was notice that in the view of the presiding officer he was the 
choice of the Legislature, and that so would the Legislature 
speak by its only voice, the signature of the Governor, and the 
great seal of the State. 

4 


50 


The declaration was assented to sub silentio. 

The Governor was authorized by the Legislature, under the 
great seal of the State, to commission Mr. Stockton as Senator, 
for so they said all. If this election was not the will of the 
majority, why was the declaration that Mr. Stockton was duly 
elected permitted to pass in silence ? If they desired to avoid 
the result of the plurality vote which they had previously agreed 
to, whether it was in their power to do so or ^ot, they would 
have manifested it, if only to prevent the conclusion of unani¬ 
mous consent. 

Having the return, he is entitled to take his seat upon his cre¬ 
dentials, beyond question. It is equally true that the fact that 
there was some error or mistake in giving the credentials, by 
which they did not properly express the choice of the Legisla¬ 
ture, may be subsequently examined when properly brought be¬ 
fore the United States Senate. But in order to raise even this 
question, it is manifest that the charge must be that the creden¬ 
tials do not properly express the will of the Legislature at the 
time of the election , while they were in session,—before they 
separated,—while the matter was pending. This is the founda¬ 
tion of the attack ; no charge without it can authorize an exam¬ 
ination. Admit that the Legislature agreed by a vote of a ma¬ 
jority of the whole to select in this manner, to express their 
choice in this way; that when the result was reached they heard 
it announced and declared, approved it by unanimous consent, 
silently confirmed the result of the majority rule by the action 
of the whole, made it the duty of the Governor to commission 
the candidate declared to be elected under the great seal of the 
State, and you are estopped from attempting to prove that the 
election was invalid. 

Individual members may change their mind after the joint 
meeting, and the Legislature had adjourned, and ceased to ex¬ 
ist, but this cannot alter what was done by the Senate and As¬ 
sembly when assembled in joint meeting. 

The protest of individual members after the adjournment of 
the Legislature, affected in no manner the action of the Legis¬ 
lature in its official capacity. The majority of the Legislature 


51 


authorized the application of the plurality rule. Subsequent to 
its application, they confirmed and ratified their previous action 
by their silence when Mr. Stockton was declared duly elected. 
Their official power to question their action has expired. Their 
subsequent protest as individuals, could in no manner affect their 
official action as Representatives, though they might, in com¬ 
mon with any other individual contest the validity of such Le¬ 
gislative action. 

The Senate is the “judge of the elections, returns and qualifi¬ 
cations of its own members,” but in reference to the manner of 
the election; they are confined to the question, whether or not 
it was done as prescribed by the Legislature of the State. If 
both Houses have assented, there is nothing upon which the 
Senate of the United States can pass judgment. 

From the foregoing examination the following propositions 
seem to be established : 

First.—Senators of the United States are to be “chosen” by 
the Legislatures of the several States. 

Second.—The “manner” of the choice is to be prescribed by 
the Legislature thereof. 

Third.—The Legislature of New Jersey, by statute, indicated 
“ the Senate and Assembly, in joint meeting assembled,” a3 the 
“manner” in which the duty imposed upon them by the Constitu¬ 
tion of the United States should be performed. 

Fourth.—The Constitution of New Jersey recognizes “the 
Senate and Assembly, in joint meeting assembled,” as the Le¬ 
gislature of the State. 

Fifth.—“ The Senate and Assembly, in joint meeting assem¬ 
bled,” have full power to determine the “manner” of the election 
of a United States Senator, by the authority derived from the 
Constitution of the United States; the Constitution of the 
State ; by virtue of the statute law of the State; by parliamen¬ 
tary usage, and by universal custom. 

Sixth.—That if the joint meeting had not the power to pre¬ 
scribe the manner of choice, yet the “manner” being deter¬ 
mined by the statute of the State, “ the Senate and Assembly, 


52 


LIBRARY OF CONGRESS 


0 028 070 963 3 


in joint meeting assembled,” were authorized to indicate their 
choice by such rules as they might adopt. 

Seventh.—The election of Mr. Stockton under the rules 
adopted by the joint meeting of 1865, ivas not a 'plurality 
election , but was the choice of the majority , expressed by the 
method indicated by them, so declared in the resolution previous 
to the election and subsequent to it, by the silence and acqui¬ 
escence of all the members. 

Eighth.—That the whole body confirmed the legal election 
of Mr. Stockton, and authorized the Governor, under the 
statute, to commission him as United States Senator for six 
years, from the 4th of March, 1865, and thereby the matter is 
concluded. 



